ex10-2





 







Exhibit 10.2


 



REGISTRATION RIGHTS AGREEMENT



 


REGISTRATION RIGHTS
AGREEMENT (this
“Agreement”),
dated as of November 19, 2018, by and
between MABVAX THERAPEUTICS HOLDINGS,
INC., a Delaware corporation
(the “Company”),
and TRITON FUNDS
LP, a Delaware limited
partnership (together with it permitted assigns, the
“Buyer”).
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in that certain Equity
Purchase Agreement, by and between the parties hereto, dated as of
the date hereof (as amended, restated, supplemented or otherwise
modified from time to time, the “Equity Purchase
Agreement”).


 



WHEREAS:



 


The One Million Dollars ($1,000,000) of Purchase
Notice Shares and to induce the Buyer to enter into the Equity
Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended,
and the rules and regulations thereunder, or any similar successor
statute (collectively, the “Securities
Act”), and applicable
state securities laws.


 


NOW,
THEREFORE, in consideration of
the promises and the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Buyer hereby
agree as follows:


 


1. DEFINITIONS.


 


As
used in this Agreement, the following terms shall have the
following meanings:


 


a. “Investor”
means the Buyer, any transferee or assignee thereof to whom a Buyer
assigns its rights under this Agreement in accordance with Section
9 and who agrees to become bound by the provisions of this
Agreement, and any transferee or assignee thereof to whom a
transferee or assignee assigns its rights under this Agreement in
accordance with Section 9 and who agrees to become bound by the
provisions of this Agreement.


 


b. “Person”
means any individual or entity including but not limited to any
corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a
governmental or political subdivision thereof or a governmental
agency.


 


c. “Register”,
“registered”,
and “registration”
refer to a registration effected by preparing and filing one or
more registration statements of the Company in compliance with the
Securities Act and/or pursuant to Rule 415 under the Securities Act
or any successor rule providing for offering securities on a
continuous basis (“Rule
415”), and the
declaration or ordering of effectiveness of such registration
statement(s) by the United States Securities and Exchange
Commission (the “ SEC ”).


 


d. “Registrable
Securities” means (a) an
aggregate of up to 6,000,000 shares of the Company’s Common
Stock (the “Common
Stock”) issuable upon
conversion of the Purchase Notice Shares; (b) 175,000 shares of
Common Stock issued to Investor pursuant to a share donation
agreement entered into between the Company and Triton Funds LLC;
and (c) any shares of Common Stock issued to the Investor as a
result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise with respect
thereto.


 


e. “Registration
Statement” means one or
more registration statements of the Company covering only the sale
of the Registrable Securities.


  


 




 

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2. REGISTRATION.


 


a. Mandatory
Registration. The Company
shall, within thirty (30) calendar days from the date hereof, file
with the SEC an initial Registration Statement covering the maximum
number of Registrable Securities (beginning with the Common Stock
issuable upon conversion of Purchase Notice Shares) as shall be
permitted to be included thereon in accordance with applicable SEC
rules, regulations and interpretations so as to permit the resale
of such Registrable Securities by the Investor, including but not
limited to under Rule 415 under the Securities Act at then
prevailing market prices (and not fixed prices), as mutually
determined by both the Company and the Investor in consultation
with their respective legal counsel, subject to the aggregate
number of authorized shares of the Common Stock then available for
issuance in its Certificate of Incorporation. The initial
Registration Statement shall register only the Registrable
Securities. The Investor and its counsel shall have a reasonable
opportunity to review and comment upon such Registration Statement
and any amendment or supplement to such Registration Statement and
any related prospectus prior to its filing with the SEC, and the
Company shall give due consideration to all reasonable comments.
The Investor shall furnish all information reasonably requested by
the Company for inclusion therein. The Company shall use its
reasonable best efforts to have the Registration Statement and any
amendment declared effective by the SEC at the earliest possible
date. The Company shall use reasonable best efforts to keep the
Registration Statement effective, including but not limited to
pursuant to Rule 415 promulgated under the Securities Act and
available for the resale by the Investor of all of the Registrable
Securities covered thereby at all times until the earlier of (i)
the date as of which the Investor may sell all of the Registrable
Securities without restriction pursuant to Rule 144 promulgated
under the Securities and (ii) the date on which the Investor shall
have sold all the Registrable Securities covered thereby and no
Available Amount remains under the Equity Purchase Agreement (the
“Registration
Period”). The
Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading.


 


b. Rule 424
Prospectus. The Company shall,
as required by applicable securities regulations, from time to time
file with the SEC, pursuant to Rule 424 promulgated under the
Securities Act, the prospectus and prospectus supplements, if any,
to be used in connection with sales of the Registrable Securities
under the Registration Statement. The Investor and its counsel
shall have a reasonable opportunity to review and comment upon such
prospectus prior to its filing with the SEC, and the Company shall
give due consideration to all such comments. The Investor shall use
its reasonable best efforts to comment upon such prospectus within
one (1) Business Day from the date the Investor receives the final
pre-filing version of such prospectus.



 


c. Sufficient Number of
Shares Registered. In the event
the number of shares available under the Registration Statement is
insufficient to cover all of the Registrable Securities, the
Company shall amend the Registration Statement or file a new
Registration Statement (a “New Registration
Statement”), so as to
cover all of such Registrable Securities (subject to the
limitations set forth in Section 2(a)) as soon as practicable, but
in any event not later than ten (10) Business Days after the
necessity therefor arises, subject to any limits that may be
imposed by the SEC pursuant to Rule 415 under the Securities Act.
The Company shall use it reasonable best efforts to cause such
amendment and/or New Registration Statement to become effective as
soon as practicable following the filing thereof. Unless the
Registration Period has ended, in the event that any of the Common
Stock issuable upon conversion of Purchase Notice Shares are not
included in the Registration Statement, or have not been included
in any New Registration Statement and the Company files any other
registration statement under the Securities Act (other than on Form
S-4, Form S-8, or with respect to other employee related plans or
rights offerings) (“Other Registration
Statement ”) then
the Company shall include in such Other Registration Statement
first all of such Common Stock
issuable upon conversion of Purchase Notice Shares that have not
been previously registered, and second any other securities the
Company wishes to include in such Other Registration Statement.
Unless the Registration Period has ended, the Company agrees that
it shall not file any such Other Registration Statement unless all
of the Common Stock issuable upon conversion of Purchase Notice
Shares have been included in such Other Registration Statement or
otherwise have been registered for resale as described
above.


 


 




 

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d. Offering.
If the staff of the SEC (the “Staff’) or the SEC seeks
to characterize any offering pursuant to a Registration Statement
filed pursuant to this Agreement as constituting an offering of
securities that does not permit such Registration Statement to
become effective and be used for resales by the Investor under Rule
415 at then-prevailing market prices (and not fixed prices), or if
after the filing of the initial Registration Statement with the SEC
pursuant to Section 2(a), the Company is otherwise required by the
Staff or the SEC to reduce the number of Registrable Securities
included in such initial Registration Statement, then the Company
shall reduce the number of Registrable Securities to be included in
such initial Registration Statement (with the prior consent, which
shall not be unreasonably withheld, of the Investor and its legal
counsel as to the specific Registrable Securities to be removed
therefrom) until such time as the Staff and the SEC shall so permit
such Registration Statement to become effective and be used as
aforesaid. Unless the Registration Period has ended, in the event
of any reduction in Registrable Securities pursuant to this
paragraph, the Company shall file one or more New Registration
Statements in accordance with Section 2(c) until such time as all
Registrable Securities have been included in Registration
Statements that have been declared effective and the prospectus
contained therein is available for use by the Investor.
Notwithstanding any provision herein or in the Equity Purchase
Agreement to the contrary, the Company’s obligations to
register Registrable Securities (and any related conditions to the
Investor’s obligations) shall be qualified as necessary to
comport with any requirement of the SEC or the Staff as addressed
in this Section 2(d).


 


3. RELATED
OBLIGATIONS.


 


With
respect to the Registration Statement and whenever any Registrable
Securities are to be registered pursuant to Section 2 including on
any New Registration Statement, the Company shall use its
reasonable best efforts to effect the registration of the
Registrable Securities in accordance with the intended method of
disposition thereof and, pursuant thereto, the Company shall have
the following obligations:


 


a.
The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to any
registration statement and the prospectus used in connection with
such registration statement, which prospectus is to be filed
pursuant to Rule 424 promulgated under the Securities Act, as may
be necessary to keep the Registration Statement or any New
Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities of the Company covered by the
Registration Statement or any New Registration Statement until such
time as all of such Registrable Securities shall have been disposed
of in accordance with the intended methods of disposition by the
seller or sellers thereof as set forth in such registration
statement.


 


b.
The Company shall permit the Investor to review and comment upon
the Registration Statement or any New Registration Statement and
all amendments and supplements thereto at least two (2) Business
Days prior to their filing with the SEC, and not file any document
in a form to which Investor reasonably objects. The Investor shall
use its reasonable best efforts to comment upon the Registration
Statement or any New Registration Statement and any amendments or
supplements thereto within two (2) Business Days from the date the
Investor receives the final version thereof. The Company shall
furnish to the Investor, without charge any correspondence from the
SEC or the staff of the SEC to the Company or its representatives
relating to the Registration Statement or any New Registration
Statement.


 


c.
Upon request of the Investor, the Company shall furnish to the
Investor, (i) promptly after the same is prepared and filed with
the SEC, at least one copy of such registration statement and any
amendment(s) thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits,
(ii) upon the effectiveness of any registration statement, a copy
of the prospectus included in such registration statement and all
amendments and supplements thereto (or such other number of copies
as the Investor may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus,
as the Investor may reasonably request from time to time in order
to facilitate the disposition of the Registrable Securities owned
by the Investor. For the avoidance of doubt, any filing available
to the Investor via the SEC’s live EDGAR system shall be
deemed “furnished to the Investor”
hereunder.


 


 




 

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d. The Company shall use reasonable best efforts
to (i) register and qualify the Registrable Securities covered by a
registration statement under such other securities or
“blue
sky” laws of California,
(ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii)
take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for
sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section
3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process
in any such jurisdiction. The Company shall promptly notify the
Investor who holds Registrable Securities of the receipt by the
Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities
for sale under the securities or “blue sky” laws of
California or its receipt of actual notice of the initiation or
threatening of any proceeding for such
purpose. 


 


e.
As promptly as practicable after becoming aware of such event or
facts, the Company shall notify the Investor in writing of the
happening of any event or existence of such facts as a result of
which the prospectus included in any registration statement, as
then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
promptly prepare a supplement or amendment to such registration
statement to correct such untrue statement or omission, and deliver
a copy of such supplement or amendment to the Investor (or such
other number of copies as the Investor may reasonably request). The
Company shall also promptly notify the Investor in writing (i) when
a prospectus or any prospectus supplement or post-effective
amendment has been filed, and when a registration statement or any
post-effective amendment has become effective (notification of such
effectiveness shall be delivered to the Investor by email or
facsimile on the same day of such effectiveness and by overnight
mail), (ii) of any request by the SEC for amendments or supplements
to any registration statement or related prospectus or related
information, and (iii) of the Company’s reasonable
determination that a post-effective amendment to a registration
statement would be appropriate.


 


f.
The Company shall use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of
any registration statement, or the suspension of the qualification
of any Registrable Securities for sale in any jurisdiction and, if
such an order or suspension is issued, to obtain the withdrawal of
such order or suspension at the earliest possible moment and to
notify the Investor of the issuance of such order and the
resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such
purpose.


 


g.
The Company shall (i) cause all the Registrable Securities to be
listed on each securities exchange on which securities of the same
class or series issued by the Company are then listed, if any, if
the listing of such Registrable Securities is then permitted under
the rules of such exchange, or (ii) secure designation and
quotation of all the Registrable Securities on the Principal
Market. The Company shall pay all fees and expenses in connection
with satisfying its obligation under this Section.


 


h.
The Company shall cooperate with the Investor to facilitate the
timely preparation and delivery of certificates (not bearing any
restrictive legend) representing the Registrable Securities to be
offered pursuant to any registration statement and enable such
certificates to be in such denominations or amounts as the Investor
may reasonably request and registered in such names as the Investor
may request.


 


i.
The Company shall at all times provide a transfer agent and
registrar with respect to its Common Stock.


 


j.
If reasonably requested by the Investor, the Company shall (i)
immediately incorporate in a prospectus supplement or
post-effective amendment such information as the Investor believes
should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being sold,
the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities; (ii) make all required
filings of such prospectus supplement or post-effective amendment
as soon as practicable upon notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment; and (iii) supplement or make amendments to any
registration statement.


 


 




 

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k.
The Company shall use its reasonable best efforts to cause the
Registrable Securities covered by any registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to consummate the disposition of
such Registrable Securities.


 


l. Within three (3) Business Days after any
registration statement which includes the Registrable Securities is
ordered effective by the SEC, the Company shall deliver, and shall
cause legal counsel for the Company to deliver, to the transfer
agent for such Registrable Securities (with copies to the Investor)
confirmation that such registration statement has been declared
effective by the SEC in the form attached hereto
as Exhibit
A. Thereafter, if requested by
the Buyer at any time, the Company shall require its counsel to
deliver to the Buyer a written confirmation whether or not the
effectiveness of such registration statement has lapsed at any time
for any reason (including, without limitation, the issuance of a
stop order) and whether or not the registration statement is
current and available to the Buyer for sale of all of the
Registrable Securities.


 


m.
The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investor of Registrable
Securities pursuant to any registration statement.


 


4. OBLIGATIONS OF THE
INVESTOR.


 


a.
The Company shall notify the Investor in writing of the information
the Company reasonably requires from the Investor in connection
with any registration statement hereunder. The Investor shall
furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such
registration as the Company may reasonably request.


 


b.
The Investor agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and
filing of any registration statement hereunder.


 


c.
The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event or existence of facts of the
kind described in Section 3(f) or the first sentence of 3(e), the
Investor will immediately discontinue disposition of Registrable
Securities pursuant to any registration statement(s) covering such
Registrable Securities until the Investor’s receipt of the
copies of the supplemented or amended prospectus contemplated by
Section 3(f) or the first sentence of 3(e). Notwithstanding
anything to the contrary, the Company shall cause its transfer
agent to promptly deliver shares of Common Stock without any
restrictive legend in accordance with the terms of the Equity
Purchase Agreement in connection with any sale of Registrable
Securities with respect to which an Investor has entered into a
contract for sale prior to the Investor’s receipt of a notice
from the Company of the happening of any event of the kind
described in Section 3(f) or the first sentence of Section 3(e) and
for which the Investor has not yet settled.


 


5. EXPENSES OF
REGISTRATION.


 


All
reasonable expenses, other than sales or brokerage commissions,
incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees,
printers and accounting fees, and fees and disbursements of counsel
for the Company, shall be paid by the Company.


 


 




 

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6. INDEMNIFICATION.


 


a. To the fullest extent permitted by law, the
Company will, and hereby does, indemnify, hold harmless and defend
the Investor, each Person, if any, who controls the Investor, the
members, the directors, officers, partners, employees, agents,
representatives of the Investor and each Person, if any, who
controls the Investor within the meaning of the Securities Act or
the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”) (each, an
“Indemnified
Person”), against any
losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, attorneys’ fees, amounts paid in settlement
or expenses, joint or several, (collectively,
“Claims”)
incurred in investigating, preparing or defending any action,
claim, suit, inquiry, proceeding, investigation or appeal taken
from the foregoing by or before any court or governmental,
administrative or other regulatory agency, body or the SEC, whether
pending or threatened, whether or not an indemnified party is or
may be a party thereto (“Indemnified
Damages”), to which any
of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in the Registration Statement,
any New Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification
of the offering under the securities or other
“blue
sky” laws of any
jurisdiction in which Registrable Securities are offered
(“Blue Sky
Filing”), or the omission
or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) any untrue statement or alleged untrue statement of a material
fact contained in the final prospectus (as amended or supplemented,
if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein
any material fact necessary to make the statements made therein, in
light of the circumstances under which the statements therein were
made, not misleading, (iii) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any other law,
including, without limitation, any state securities law, or any
rule or regulation thereunder relating to the offer or sale of the
Registrable Securities pursuant to the Registration Statement or
any New Registration Statement or (iv) any material violation by
the Company of this Agreement (the matters in the foregoing clauses
(i) through (iv) being, collectively, “Violations”).
The Company shall reimburse each Indemnified Person promptly as
such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them
in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim by an Indemnified Person arising out of or
based upon a Violation which occurs in reliance upon and in
conformity with information about the Investor furnished in writing
to the Company by such Indemnified Person expressly for use in
connection with the preparation of the Registration Statement, any
New Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by
the Company pursuant to Section 3(c) or Section 3(e); (ii) with
respect to any superseded prospectus, shall not inure to the
benefit of any such person from whom the person asserting any such
Claim purchased the Registrable Securities that are the subject
thereof (or to the benefit of any person controlling such person)
if the untrue statement or omission of material fact contained in
the superseded prospectus was corrected in the revised prospectus,
as then amended or supplemented, if such revised prospectus was
timely made available by the Company pursuant to Section 3(c) or
Section 3(e), and the Indemnified Person was promptly advised in
writing not to use the incorrect prospectus prior to the use giving
rise to a violation and such Indemnified Person, notwithstanding
such advice, used it; (iii) shall not be available to the extent
such Claim is based on a failure of the Investor to deliver or to
cause to be delivered the prospectus made available by the Company,
if such prospectus was timely made available by the Company
pursuant to Section 3(c) or Section 3(e); and (iv) shall not apply
to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Investor pursuant
to Section 9.


 


 




 

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b.
Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any
action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver
to the indemnifying party a written notice of the commencement
thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be; provided,
however, that an Indemnified Person or Indemnified Party shall have
the right to retain its own counsel with the fees and expenses to
be paid by the indemnifying party, if, in the reasonable opinion of
counsel retained by the indemnifying party, the representation by
such counsel of the Indemnified Person or Indemnified Party and the
indemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel
in such proceeding. The Indemnified Party or Indemnified Person
shall cooperate fully with the indemnifying party in connection
with any negotiation or defense of any such action or claim by the
indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or claim. The
indemnifying party shall keep the Indemnified Party or Indemnified
Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any
action, claim or proceeding effectuated without its written
consent, provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No
indemnifying party shall, without the consent of the Indemnified
Party or Indemnified Person, consent to entry of any judgment or
enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party or Indemnified Person of a
release from all liability in respect to such claim or litigation.
Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which
indemnification has been made. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the
indemnifying party is prejudiced in its ability to defend such
action.



 


c.
The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or
Indemnified Damages are incurred.


 


d.
The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party
or Indemnified Person against the indemnifying party or others, and
(ii) any liabilities the indemnifying party may be subject to
pursuant to the law.


 


7. CONTRIBUTION.


 


To
the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any seller of Registrable
Securities who was not guilty of fraudulent misrepresentation; and
(ii) contribution by any seller of Registrable Securities shall be
limited in amount to the net amount of proceeds received by such
seller from the sale of such Registrable Securities.


 


 




 

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8. REPORTS AND DISCLOSURE
UNDER THE SECURITIES ACTS.


 


With a view to making available to the Investor
the benefits of Rule 144 promulgated under the Securities Act or
any other similar rule or regulation of the SEC that may at any
time permit the Investor to sell securities of the Company to the
public without registration (“Rule
144”), the Company
agrees, at the Company’s sole expense,
to:


 


a.
make and keep public information available, as those terms are
understood and defined in Rule 144;


  


b.
use reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act so long as the Company remains
subject to such requirements and the filing of such reports and
other documents is required for the applicable provisions of Rule
144;


 


c.
furnish to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting and or disclosure
provisions of Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably
requested to permit the Investor to sell such securities pursuant
to Rule 144 without registration; and


 


d.
take such additional action as is requested by the Investor to
enable the Investor to sell the Registrable Securities pursuant to
Rule 144, including, without limitation, delivering all such legal
opinions, consents, certificates, resolutions and instructions to
the Company’s Transfer Agent as may be requested from time to
time by the Investor and otherwise fully cooperate with Investor
and Investor’s broker to effect such sale of securities
pursuant to Rule 144.


  


9. ASSIGNMENT OF
REGISTRATION RIGHTS.


 


The
Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Investor. The Investor may not assign its rights under this
Agreement without the written consent of the Company.


 


10. AMENDMENT OF
REGISTRATION RIGHTS.


 


No
provision of this Agreement may be amended or waived by the parties
from and after the date that is one Business Day immediately
preceding the initial filing of the Registration Statement with the
SEC. Subject to the immediately preceding sentence, no provision of
this Agreement may be (i) amended other than by a written
instrument signed by both parties hereto or (ii) waived other than
in a written instrument signed by the party against whom
enforcement of such waiver is sought. Failure of any party to
exercise any right or remedy under this Agreement or otherwise, or
delay by a party in exercising such right or remedy, shall not
operate as a waiver thereof.


 


11. MISCELLANEOUS.


 


a.
A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act
upon the basis of instructions, notice or election received from
the registered owner of such Registrable Securities.


 


 




 

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b.
Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile or email (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the
sending party); or (iii) one (1) Business Day after deposit with a
nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses
for such communications shall be:


 


If
to the Company:


 


MABVAX
THERAPEUTICS HOLDINGS, INC.


11535
SORRENTO VALLEY ROAD, SUITE 400


SAN
DIEGO, CA 92121


ATTENTION:
GREGORY HANSON, CFO


E-mail:
gregoryhanson@mabvax.com


 


If
to the Investor:


 


TRITON
FUNDS LLC


1262
PROSPECT STREET


LA
JOLLA, CA 92037


E-mail:
tritonfunds@tritonfunds.com


 



or at such other address and/or facsimile number and/or to the
attention of such other person as the recipient party has specified
by written notice given to each other party three (3) Business Days
prior to the effectiveness of such change. Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver
or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine or email account
containing the time, date, recipient facsimile number or email
address, as applicable, and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.



 


c. The corporate laws of the State of California
shall govern all issues concerning this Agreement. All other
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal
laws of the State of California, without giving effect to any
choice of law or conflict of law provision or rule (whether of the
State of California or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the
State of California. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting the
State of California, County of Los Angeles, for the adjudication of
any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. If
any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of
any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY. 


 




 

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d.
This Agreement and the Equity Purchase Agreement constitute the
entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
referred to herein and therein. This Agreement and the Equity
Purchase Agreement supersede all prior agreements and
understandings among the parties hereto with respect to the subject
matter hereof and thereof.


 


e.
Subject to the requirements of Section 9, this Agreement shall
inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties hereto.


 


f.
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning
hereof.


 


g. This Agreement may be executed in identical
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement,
once executed by a party, may be delivered to the other party
hereto by email in a “.pdf”
format data file of a copy of this Agreement bearing the signature
of the party so delivering this Agreement.


 


h.
Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.


 


i.
The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent and
no rules of strict construction will be applied against any
party.


 


j.
This Agreement is intended for the benefit of the parties hereto
and their respective successors and permitted assigns, and is not
for the benefit of, nor may any provision hereof be enforced by,
any other Person.


 


 




 

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IN WITNESS
WHEREOF, the parties have
caused this Agreement to be duly executed as of day and year first
above written. 


 


 


 


MABVAX
THERAPEUTICS HOLDINGS, INC.

 



By: /s/ J. David
Hansen 







Name:
J. David Hansen


Title:
President and CEO

 


 

 


TRITON
FUNDS LP

 



By: /s/ Tyler
Hoffman







Name:
Tyler Hoffman


Title:
Authorized Signatory

 


 


 


 


 





[Signature Page to Registration Rights Agreement]


 

-11-








 






 



EXHIBIT A



 



TO REGISTRATION RIGHTS AGREEMENT



 



FORM OF NOTICE OF EFFECTIVENESS 



OF REGISTRATION STATEMENT



 



_____________, 2018



 



Re: [__________]



 



Ladies and Gentlemen:



 


MABVAX THERAPEUTICS HOLDINGS,
INC., a Delaware corporation
(the “Company”),
hereby acknowledges entering into that certain Equity Purchase
Agreement, dated as of November [__], 2018 (the
“Equity Purchase
Agreement”), by and
between the Company and TRITON FUNDS LP (the
“Buyer”)
pursuant to which the Company has agreed to issue to the Buyer
shares of the Company’s 0% Series P Convertible Preferred
Stock, $0.01 par value per share, in an amount up to One Million
Dollars ($1,000,000) (the “Purchase Notice
Shares”), in accordance
with the terms of the Equity Purchase Agreement. In connection with
the transactions contemplated by the Equity Purchase Agreement, the
Company has registered with the U.S. Securities & Exchange
Commission the following shares of Common
Stock:


 




(1)

Shares of the Company’s Common Stock, $0.01
par value per share (the “Common
Stock”), issuable upon
conversion of Purchase Notice Shares to be issued to the Buyer upon
purchase from the Company by the Buyer from time to time in
accordance with the Equity Purchase Agreement.








(2)

175,000
shares of Common Stock issued to Triton Funds LLC pursuant to a
share donation agreement entered into between the Company and
Triton Funds LLC (such shares, the “Donation
Shares”).







 


Pursuant to the Equity Purchase Agreement, the
Company also has entered into a Registration Rights Agreement, of
even date with the Equity Purchase Agreement with the Buyer (the
“Registration Rights
Agreement”) pursuant to
which the Company agreed, among other things, to register the
Common Stock issuable upon conversion of Purchase Notice Shares
under the Securities Act of 1933, as amended (the
“Securities
Act”). In connection with
the Company’s obligations under the Equity Purchase Agreement
and the Registration Rights Agreement, on [__________], 2018, the
Company filed a Registration Statement (File No. 333-[__________])
(the “Registration
Statement”) with the
Securities and Exchange Commission (the “SEC”) relating to the resale of the Common
Stock issuable upon conversion of Purchase Notice Shares and
relating to the resale of the Donation Shares.


 


In
connection with the foregoing, we advise you that a member of the
SEC’s staff has advised us by telephone that the SEC has
entered an order declaring the Registration Statement effective
under the Securities Act at [__________] [A.M./P.M.] on
[__________], 2018 and we have no knowledge, after telephonic
inquiry of a member of the SEC’s staff, that any stop order
suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by,
the SEC and the Common Stock issuable upon conversion of Purchase
Notice Shares are available for resale under the Securities Act
pursuant to the Registration Statement and may be issued without
any restrictive legend.


 


	
 

	


Very truly yours,


 


 

	
 


	
 

	


MabVax Therapeutics Holdings, Inc.


 



By: ________________________________

	
 


	

 


 



cc: TRITON FUNDS LLC

	


Name:



Title:


	
 


	
 

	
 

	
 







 




 

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